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The White House announced on Friday, September 15, 2017, that President Donald Trump has nominated Peter B. Robb to serve as the next General Counsel for the National Labor Relations Board.  Robb is a management-side labor and employment attorney, who currently practices in Vermont.  Robb previously worked as a field attorney for the NLRB, a supervisory attorney for the Federal Labor Relations Authority, and then as the Chief Counsel to former NLRB member Robert Hunter (a Republican), who was appointed to the Board in 1981 by President Reagan.  In 1985, Robb began private practice representing company management in labor and employment law.  As the General Counsel, Robb would decide which issues to put before the NLRB for resolution.  A rollback of a number of union-friendly decisions is expected. Continue Reading Trump Announces Nomination For NLRB General Counsel – What It Means For Employers

After a Texas federal judge struck down the Department of Labor’s proposed overtime rule, as discussed here, the DOL dropped its appeal of the preliminary injunction the same judge granted in November 2016. As we previously noted, the Fifth Circuit appeal of the injunction, which blocked the Obama-era overtime rule from going into effect, became moot following the district court’s judgment on August 31, 2017.

Notably, however, the Department of Justice (on behalf of the DOL) can still appeal the court’s final judgment entered last week. It is unclear whether the DOL will appeal the ruling to challenge whether the agency has the authority to set any salary test for the exemption analysis. Or whether the DOL will instead propose its own version of a new overtime rule (or keep the current version intact). Employers should therefore keep an eye on any developments. Of course, we will continue to monitor and provide updates of any changes to overtime requirements.

Starting last summer, employers began preparing to comply with the Obama administration’s revisions to the Fair Labor Standards Act (FLSA) regulations for the executive, administrative, and professional overtime exemptions (“white collar” exemptions). If implemented, the revised overtime rule would dramatically expand the number of workers eligible for overtime pay and would impact most U.S. employers. Because of legal challenges to the new rule, however, its validity has been up in the air for nearly a year. And the change from the Obama to Trump administration only created more uncertainty for employers. Right before the Labor Day weekend, a federal court in Texas issued an order invalidating the new overtime rule. Although we expect challenges to the court’s ruling, and the Trump DOL may propose its own revisions, the court’s order provides employers grappling with the proposed changes to the overtime exemptions with some clarity.

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Last Tuesday, in Hively v. Ivy Tech Community College, the Seventh Circuit Court of Appeals (with jurisdiction over the courts in Illinois, Indiana and Wisconsin) became the first federal circuit to explicitly rule that sexual orientation is covered by Title VII of the Civil Rights Act of 1964. In so doing, the Seventh Circuit created a split with every other court of appeals that has addressed the issue to date, thereby teeing the issue up for a possible showdown in the US Supreme Court.

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In recent weeks, the developing landscape on immigration enforcement has dominated the media. In a quick refresh of an internet page, headlines alert us to new reports of potential immigration crackdowns, increases in deportations, confusion at ports of entry, legal challenges to the Executive Orders issued last month, and additional Executive Orders to potentially follow. On February 20, 2017, Department of Homeland Security (DHS) Secretary John Kelly issued two Memoranda (“Implementing the President’s Border Security and Immigration Enforcement Improvement Policies” and “Enforcement of the Immigration Laws to Serve the National Interest”) that outline how DHS plans to implement the Executive Orders on border security and interior immigration enforcement signed by President Trump on January 25, 2017. While the DHS Memoranda (or guidelines) do not speak directly to the integrity of foreign worker visa programs, they may prove a harbinger to US multinational employers of aggressive enforcement directives that may underpin the business-related aspects of the current administration’s overarching immigration policy.

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But wait there’s more. While President Trump’s Executive Order temporarily banning certain foreign nationals from entry into the United States is dominating the headlines these days, employers now have something else to worry about. Under a 2015 law, Section 7345 of the Internal Revenue Code, the State Department has the right to revoke a US citizen’s passport for nonpayment of delinquent Federal taxes. The Internal Revenue Service recently posted guidance on its website to provide an understanding of how the law may apply in practice. In general, if the IRS assesses a taxpayer for unpaid federal US taxes, and the taxpayer does not take steps to address the problem, the State Department may revoke, deny or limit that person’s passport. Just imagine the administrative headache and threat to the business if the employee is on assignment to a foreign country when the revocation occurs, or travels frequently to other countries on business, or is planning to take an overseas posting in the near future. Employers beware!

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We are living in uncertain and quickly changing times. Most recently, on January 27, 2017, President Trump issued an Executive Order that suspends entry into the US for 90 days of certain aliens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. For more information, read here. For US multinational employers, this latest Executive Order immediately begs the question: What action must, or should, a US employer take with respect to its mobile workforce, managers and business leaders?

Continue Reading President Trump’s Executive Order Suspending Entry to the US Raises Employment Law Considerations

As you know, on Friday, January 27, 2017, President Trump issued an Executive Order (EO) suspending entry into the United States of aliens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. The suspension will be in place for 90 days and applies to both immigrants and nonimmigrants. Specifically excluded from the EO are foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3 and G-4 visas. The EO also grants authority to the Secretaries of State and Homeland Security to continue issuing visas and other immigration benefits to nationals of otherwise blocked countries, if doing so is deemed to be in the national interest. Such determinations will be made on a case-by-case basis.

Continue Reading President’s Executive Order can impact travel for certain lawfully present non-immigrants and immigrants to the US

Catch ’em all!  Pokémon Go is a mobile game that uses “augmented” reality to create a virtual scavenger hunt.  In the quest to catch ’em all, over 15 million people have downloaded the Pokémon Go game since its recent release.  Employers have grappled with employees’ personal use of electronic devices during work hours since gaming fads such as Candy Crush and Draw Something were released.  However, beyond creating a simple distraction in the workplace, the explosion of Pokémon Go subjects employers to potentially costly risks, including worker safety issues, lost productivity, data breach possibilities, and misuse of company resources.

Our Toronto office colleague, Mark Mendl, recently authored an article that examines the various employment issues and considerations implicated with Pokémon Go.  The article may be accessed here.